Defenses to Charges of Violation of Probation

Violation of probation is a serious charge. Judges generally don’t like it when you’ve failed to comply with requirements ordered by them. And, the punishment can be severe, including up to the maximum penalty you might have received for the underlying charge for which you are on probation.

The good news is if you have been deemed to be in violation of your probation, you often may have some defense to the charge. Two such defenses are that your violation was neither willful nor substantial. The applicability of these defenses to a charge of violation of probation was demonstrated in a recent Duval County case.

Alfred James Scott, who had no prior criminal record pled guilty to one count of sale of marijuana. He was sentenced to a ninety-day suspended sentence, followed by twenty-one months of probation. The suspended sentence was conditioned upon Scott securing a full-time job, which Scott represented he would obtain at Home Depot.

Two months later, Scott’s probation was violated on the ground he failed to secure a job at Home Depot. At his revocation hearing, Scott’s probation officer testified Scott had been fully compliant with his probation conditions. She further testified that although Scott had obtained full time employment, he did not get the Home Depot job because he failed his background check.

Scott testified that he although he had been offered a job at Home Depot, that offer was revoked after Home Depot discovered he was on probation. Scott then secured other employment at both Michael’s, working 40 hours / week and at McDonald’s for 20 hours / week.

Now, the law is that it’s not enough for the State to show you’ve violated your probation. Rather, the State also has to show your violation was willful and substantial. In other words, you are not guilty of violation of probation if your violation was not intentional or not within your control, or if it was a very minor violation.

Based on the above facts, Scott’s lawyer argued no willful violation occurred. First, Scott had received an offer from Home Depot which was withdrawn due to his probationary status, a factor beyond his control. Secondly, Scott then obtained 2 other jobs resulting in him working more hours than he would have had Home Depot alone hired him to work full-time.

The trial judge, however, concluded Scott had willfully and substantially violated his probation by not securing a job at Home Depot as he had represented he would. He was therefore sentenced to 90 days in the Duval County Jail during which time he most certainly lost both his jobs. The appellate court reversed, finding because the State’s evidence did not show Scott failed to secure a full-time job, the court erred in finding a willful and substantial violation of probation.

There are several points to take away from Mr. Scott’s case that may be helpful to your violation of probation matter. The first point is your violation cannot be deemed to be willful if you made reasonable efforts to comply with the conditions you’re alleged to have violated. A corollary to this point is your probation cannot be revoked based on matters over which you have no control.

The second point is minor violations of the conditions of your probation are insufficient to revoke your probation. Thus, in addition to demonstrating your violation was willful, the State must further show reasonable grounds exist to believe you violated your probation in a material respect.

In Mr. Scott’s case, the State could not prove his violation was willful, as he tried to get a job at Home Depot, but was unsuccessful due to factors beyond his control, namely the company’s policy to not hire probationers. Nor could the State prove Mr. Scott had violated his probation in a material respect, as while he didn’t secure employment with Home Depot, he did get jobs at both Michael’s and McDonald’s. The important thing is he had secured employment; the identity of the employer was not a material aspect of his probation.

Violation of probation is a serious charge with potentially severe consequences. If you’ve been charged with violating your probation, be sure to contact a Jacksonville criminal attorney with knowledge about, and experience with, these kinds of matters. Doing so will give you the best chance of avoiding a long jail or prison sentence. Please call me for a free consultation to discuss how I can help you with your violation of probation matter in Duval, Clay, Nassau or St. Johns Counties.